The Freedom 7 Are Beating Obama in Court

While Congress was dickering over doomed amendments to
the National Defense Authorization Act (NDAA), the “Freedom 7”
have been quietly gaining the upper hand over the federal government.

In fact, their successes so far have been so underreported by
the mainstream media that it is hardly known that this small but
determined group of plaintiffs has managed to secure a temporary
injunction against the controversial NDAA measure that allows for
the indefinite military detention of U.S. citizens without trial in
so-called terrorism cases.

Freedom 7 plaintiffs Tangerine Bolen and Chris Hedges

“I would say it’s been a battle for us to get any
mainstream coverage … it’s been a herculean effort to
get anyone to pay any attention,” charged Jennifer “Tangerine”
Bolen, founder of RevolutionTruth.org and a plaintiff in Hedges
v. Obama, which essentially challenges Section 1021(b)(2) of
the NDAA, passed by Congress and signed by the president late last
year. The language authorizes the military detention for
those responsible for, or having enabled the 9/11 attacks as well
as:

(Any) person who was a part of or substantially supported
al-Qaeda, the Taliban, or associated forces that are engaged in
hostilities against the United States or its coalition partners,
including any person who has committed a belligerent act or has
directly supported such hostilities in aid of such enemy forces.

Despite strident opposition from some Democrats and libertarian
Republicans on the Hill, a House amendment that would have carved U.S. citizens out of the detention policy failed
miserably this spring. A signing statement by Obama that insists
the act would not be used by the military to detain Americans indefinitely without trial is widely considered by critics as meaningless, mostly because there
is no guarantee that subsequent administrations won’t do
whatever they damn well please anyway.

Point is, the government has not clarified what defines
“substantially supported” or “associated forces.”
This stands at the heart of the lawsuit, led by Pulitzer-prize
winning journalist Christopher
Hedges: that there is no guarantee the act won’t be used
against reporters and activists who in the course of their work,
interview or communicate with persons the U.S. government may at some
point consider part of an “associated force,” risking
not only the constitutional protections of freedom of speech and a
free press, but the right to a fair trial and due process.

Hedges himself has explained that like any effective journalist,
his roster of sources has often included players on both sides of the
so-called Global War on Terror. “What’s
an associated force?” he declared in an April 2 interview
with Russia Today.
“It could be any organization on [America’s terrorism] list, or
lots of other organizations that aren’t on the list that are
considered associated forces.

“This is the problem. I spent 20
years as a foreign correspondent, and when we went through that
list, there were 17 groups, including al-Qaeda, that I have had, as
a reporter, direct contact with. There is no provision in there to
protect journalists at all, or anyone. Anybody can be swept up under
this. You don’t want to hand these kinds of powers to the
state, because history has shown that, eventually, they will use
it.”

The rest of the Freedom 7 are famed Pentagon Papers journalist
Daniel Ellsberg, author Noam Chomsky, Icelandic parliamentarian
Birgitta Jonsdottir, Occupy London activist Kai Wargalla, and
activist Alexa O’Brien, who believes she lost her day job
because of McCarthyite suggestions her work with Occupy Wall
Street/Day of Rage was somehow
connected to Islamic radicals.

Bolen said she feared her own work, which has included
advocating for WikiLeaks and setting up Web cast panel discussions
that in some cases may involve controversial foreign experts, would
get her into trouble. So she began canceling prospective guests.
“(Interviewing them), I believed, would have put me in the
crosshairs of the NDAA and get me and my team arrested,” she
told Antiwar.com on Thursday.

Since WikiLeaks is the focus of an ongoing
federal probe, while in tandem, Pvt. Bradley Manning, who
allegedly leaked hundreds of thousands of secure government
information to WikiLeaks, is now undergoing a
court-martial for in part, “aiding the enemy,” Bolen
and others feel as though their association with WikiLeaks founder
Julian Assange and/or the organization now puts them at real risk.

“I have had many off the record talks with WikiLeaks
people,” Bolen offered. “I felt the fact that I had
advocated on their behalf, and talked to them privately, that again,
I could be considered an ‘associated force.’

Katherine
B. Forrest, the U.S. District Judge in Manhattan presiding over
the case, appeared to agree with the plaintiffs about the vagueness
of the language and its potential consequences, and in May ordered a
temporary injunction over Section 1021 (b)(2).

U.S. District Judge Katherine Forrest

“There is a strong public
interest in protecting rights guaranteed by the First Amendment,”
Forrest wrote in the 68-page
temporary injunction (.pdf), which
rejected key arguments by the defendants, mainly that the plaintiffs
had no standing because none of them had yet been indefinitely
detained, and that the so-called “homeland battlefield”
section in the NDAA was no different than the existing detention
provisions in the Authorization for the Use of Military Force
(AUMF), established by the Bush Administration after 9/11.

Forrest did not buy this, expressing
incredulity in previous hearings that Congress would have
created new language under the NDAA if these detention powers
already existed in the AUMF (in fact, experts point out that Section
1021 is much
more expansive in terms of “who” can be targeted than
even the AUMF). She also argued that in
not defining what “associated forces” and “substantial
support” even mean, the government has given weight to the
plaintiffs’ fears and has already put a chill on their work
preemptively.

“Hedges, Wargalla, and
Jonsdottir have changed certain associational conduct, and O’Brien
and Jonsdottir have avoided certain expressive conduct, because of
their concerns about § 1021. Moreover, since plaintiffs
continue to have their associational and expressive conduct chilled,
there is both actual and continued threatened irreparable harm,”
she wrote.

Some more quotes from Forrest’s temporary injunction:

Plaintiffs have stated a more than plausible
claim that the statute inappropriately encroaches on their
rights under the First Amendment.

There is also a strong public
interest in ensuring that due process rights guaranteed by the Fifth
Amendment are protected by ensuring that ordinary citizens are able
to understand the scope of conduct that could subject them to
indefinite military detention.

This court is acutely aware that
preliminarily enjoining an act of Congress must be done with great
caution. … However, it is the responsibility of our judicial
system to protect the public from acts of Congress which infringe
upon constitutional rights. As set forth above, this court has found
that plaintiffs have shown a likelihood of success on the merits
regarding their constitutional claim and it therefore has a
responsibility to insure that the public’s constitutional rights are
protected.

Reaction from civil
libertarians was swift. “I’ve been very
hard on the federal judiciary in the past year due to its shameful,
craven deference in the post-9/11 world to executive power and,
especially, attempts to prosecute Muslims on Terrorism charges,”
author and Salon.comcolumnist Glenn Greenwald wrote at the time.

“But this is definitely an exception to that trend. This
is an extraordinary and encouraging decision.”

The government responded in
its reply (.pdf) to the injunction that if journos and activists
are engaging in “independent” reporting or public
advocacy, they are not “subject to law of war detention.”
This, after repeated attempts by the judge in hearings to distinguish whether the plaintiffs
would indeed be considered “associated
forces” or their work “substantial support” was
the government’s attempt to clarify things in light of
Forrest’s May ruling against them:

As a matter of law, individuals who
engage in the independent journalistic activities or independent
public advocacy described in plaintiffs’ affidavits and
testimony, without more, are not subject to law of war detention as
affirmed by section 1021(a)-(c), solely on the basis of such
independent journalistic activities or independent public advocacy.
Put simply, plaintiffs’
descriptions in this litigation of their activities, if accurate, do
not implicate the military detention authority affirmed in section
1021.

This is not enough, say plaintiffs and supporters, pointing out
the government carefully avoids defining what might be considered
“independent” reporting and advocacy.

In their own
reply, the lawyers for the plaintiffs wrote that the government’s
latest argument:

… lends ever more ambiguity and chill as neither the
plaintiffs nor other speakers know what the government considers to
be speech that is “solely … independent,”
a virtually impossibility since nearly all speech is made in
conjunction with interested actors, such as the terrorists that a
journalist interviews or the sources a writer consults…

Plaintiffs’ activities are not solely
independent and in many ways associative in that they would, but for
the NDAA, invite members of disputed groups to appear on Web casts
(Bolen and Wargalla), publish interviews with them (O’Brien).
Living and working amongst such people while reporting on their
activities (Hedges) is certainly a non-independent activity.

The judge continued to push back on the government’s
authority to indefinitely detain citizens without trial in the
latest hearing on August 7. According to Courthouse News reporter
Adam Klasfeld, who was there, Forrest, seemingly unmoved by the
government’s earlier arguments, persisted to no avail in
trying to nail down government lawyers on what they considered
“associated forces” and “substantial support.”

When, Klasfeld reported, the government could not say with
certainty if anyone had been detained under the new NDAA measure
(the lawyers claimed the government did not differentiate under
which authority — AUMF or NDAA — it held prisoners), she
reminded that if anyone were held under the NDAA, the
government would be in contempt of her temporary injunction.

For their part, the government’s lawyers say indefinite or
“perpetual” detention involving militants and their
supporters can be justified legally, and that if she were to pursue
a permanent injunction, Forrest’s might be overstepping the
court’s authority.

Meanwhile, the Freedom 7 appear confident that
the judge’s ruling — expected in a manner of weeks, if not
days — will go their way. Certainly, in this brief interview
outside the courthouse on
August 7, attorney counsel Bruce Afran (leaving the courtroom
with co-counsel Carl Mayer) acknowledged the positive vibes in their
direction. “The judge seemed very understanding of the
constitutional problem of the law … I’m hopeful that she
will stay with her position, we’ll see.”

Activist and writer Kevin
Gosztola, who has also been following the NDAA/Freedom 7
lawsuit, as well as its wider implications for political activists,
is confident, too, based on the judge’s questioning of the
defendants thus far. “What I think will happen in two weeks
time, unless something happens behind the scenes we are not aware of
… we’re going to see an incredible event with a
permanent injunction,” he told Antiwar.com in an interview.

No doubt the government will appeal. “President Obama is
trying to keep this law, and he’s not going to let this go,”
Afran said. But for now, the Freedom 7 are the only
ones forcing the administration to legally defend these dangerous
measures that members of Congress have tried and failed to get
expunged from the legislation.

Bolen said the government’s counsel “didn’t
offer any witnesses, no documentary evidence throughout the entire
case.” Perhaps the administration isn’t taking the
lawsuit seriously. Perhaps it will if a permanent injunction comes
down. If so, maybe big mainstream papers like The Washington Post
and The New York Times, whose writers and photographers have
just as much to lose if this egregious law is allowed to stand, will
start sending their reporters into the courtroom.